28r FEDEBAL nmrommn.
tion for betterments seem to exist here. It is true that there is a
profuse ascription of fraud against this company in the briefs of ad-
verse counsel; but no proof has been made in the evidence establish-
ing that fraudulent means were used by the company to secure the
condemnation of the ground in question, or to obtain control of the
h Alexandria & Washington Railroad Company and its property. We
have only to consider what and how allowance is to be made to this
company for its betterments. The control of this road from Alexan-
dria to the Long bridge must have been of much greater importance, r
and the use of it of much greater value, to the Alexandria & Fred-
ricksburg Company, and its associate companies north and south,
than could be measured by the pro rata receipts of net earnings in
money, which accrued to it from that short section of road, especially
if no account is taken of the five years’ rent, which the Alexandria &
Washington Company might be entitled to as a credit under the
statute of Virginia relating to betterments. It will be safe to assume
that the Alexandria & Fredricksburg Company’s use and control of
the road for 10 years have abundantly compensated it for all outlays
it may have made for repairs, taxes, and other incidental charges.
Its original outlay of $59,610.07 in constructing the road-bed and
track on the western strip is all, therefore, that we think ought to be
allowed as a first lien on that strip to the Alexandria & Fredricksburg
Company. As to the manner of providing that amount for this claim-
_ ant, if it cannot be agreed by the parties in interest what proportion
the value of this 185 feet shall bear to that of the whole 50 feet of
road, it m—ust be referred to the master to determine that proportion.
The road must then be sold as a whole, and the purchase money be
separated into two portions to represent respectively the proceeds of
the sale of the old part and of the new, and the respective funds ap-
plied as has been indicated in this decision.
WAITE, C. J., concurs. -
Snrvunr v. Wnncn and others.
(Uircuit Court, D. Oregon. April 21, 1884.)
1. DEc1sroN or THE T111E-LAND Comnssroivnus.
The commissioners under the acts of 1872 and 1874, to dispose of the state
. tide lands, were authorized to decide who was entitled, in certain cases, to be
preferred as a purchaser thereof, and their determination of the matter cannot
e questioned elsewhere, except for an error of law or a fraud extrinsic and col-
‘ lazigpé to the contest, by which a full and fair hearing of the matter was pre-
2. Saunas urvnmu THE DONATION Aer.
It does not appear that James Welch was ever a **settler," under the laws of
the provisional government or the donation act, upon the donation patented to